Broken Wills And Ghosts Of Partition: Unravelling The Constitutionality Of Enemy Property Act, 1968

Diya Khetrapal, LLB (Hons), Jindal Global Law School

During the Partition of India, around twenty million people, across religions, were displaced. The numbers were no better during the Sino-Indian War of 1962. Masses migrated, leaving behind immense property in India. It was an ugly and disheartening sight.

The Enemy Property Act, of 1968, governs the matters relating to the property of these very people, property they had to leave behind to protect their lives because of course, there was no time to sell it, and no other option during this horrific time which changed the course of history forever. A bloody war with one neighbour, and a bloodbath from religious tensions thanks to the British Raj’s ‘divide and rule’ policy with another neighbour, crumbled families. Some made it across the border, while others arrived in trains full of dead bodies at several railway stations. The war with China, which only lasted one month, had an equally devastating long- term impact.

Whereas the Enemy Property Act, of 1968 was much-needed to deal with the vast properties, the Act termed the owners of the property as ‘enemies’ forever. The war was never with individuals, it was always one country against another. But, in this political crossfire, several people became ‘enemies’. Section 2(c) of the Enemy Property Act, of 1968 defines “enemy property” as property belonging to an enemy, enemy subject or enemy firm, regardless of whether or not they are alive now. Section 2(b) of the Enemy Property Act, 1968 defines an “enemy” as ‘a person or country who or which was an enemy’. Further, it includes all legal heirs and successors of such person as enemy, irrespective of their citizenship status being Pakistani, Chinese, Indian, or literally any other country at all. Basically, it is safe to say that under this Act, once an enemy, always an enemy. Not even death can take away that label.